2 Christopher M. Mason, SBN 019891 ·
Michelle H. Ganz, SBN 023651
3 OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C. SBN 00504800
4 2415 East Camelback Road, Suite 800
5 Phoenix, Arizona 85016
Telephone: (602) 778-3700
6 Email: joe.clees@ogletreedeal
Email: [email protected] g
8 Attorneys for Defendant Charles Schwab & Co., Inc. .
9 UNITED STATES DISTRICT COURT
10 DISTRICT OF ARIZONA
I I MARCELA JOHNSON, Case No. CV-04-0790-PHX-J WS
§ 12 Plaintiff DEFENDANT CHARLES SCHWAB &
up _ __ 13 CO., INC.’S MOTION T0 COMPEL
E E 'Q§ VS· PLAINTIFF’S ATTENDANCE AT I
gi §§ Z tl 14 DEPOSITION AND REQUEST FOR
§ § é g R 15 . CHARLES SCHWAB CORPORATION, SANCTIONS
_¤2§2 ;
E E Ig 16 Defendant.
8 W I
N 18 Plaintiff refuses to appear for her initial deposition in this case and, thus, Charles P
19 Schwab & Co., Inc. ("Schwab") requests the Court to issue an order instructing Plaintiff 1
20 to appear or, in the alternative, have her case dismissed as a sanction for non-compliance.
21 Plaintiff has employed multiple tactics to avoid, delay, and effectively prevent her
22 deposition. First, her attorneys ignored undersigned counsel’s requests to schedule her
23 deposition. (Exhibits l & 2.) Then her attorneys refused to make Plaintiff available until
24 they could conduct a 30(b)(6) deposition that is the subject of a pending motion for
25 protective order. (Exhibits 3 & 4.) When undersigned counsel scheduled Plaintiffs n
26 deposition, Plaintiffs counsel unilaterally cancelled days before the scheduled deposition
Case 2:04-cv-00790-EHC Document 80 Filed 12/20/2005 Page 1 014
1 and promised to provide an altemate date.l (Exhibits 5-10.) They then returned back to
2 refusing to make Plaintiff available for deposition. (Exhibits 11 & 12.)
3 Plaintiff will undoubtedly argue that she should not be required to appear for her
4 own deposition until Schwab makes a witness available for a 30(b)(6) deposition. The
5 question of Plaintiffs overbroad 30(b)(6) notice is the subject of a pending motion for
6 protective order. Schwab offered to delay taking Plaintiffs deposition until after the
7 Court ruled on the motion and Plaintiff could take the 30(b)(6) deposition, in response to
8 an agreement to extend the Case Management Deadlines. (Exhibits 4, 10-1 1.) Dawn
0 9 Valdivia agreed to this during a telephonic meet and confer on December 7, 2005.
10 (Exhibit ll.) She then recanted on the agreement, as discussed in Schwab’s Expedited
ll Motion to Extend Case Management Deadlines. I
_ E 12 The point though, is that there is no legal basis or authority for Plaintiff to refuse
13 to appear for deposition simply because the scope of an unrelated 30(b)(6) deposition is
§ ig lg 14 in dispute and has been briefed for the Court to resolve. Plaintiffs counsel seemed to _
E §§l5 recognize this point when they abandoned their argument and promised to provide dates `
§ gl E; 16 for Plaintiffs deposition. (Exhibits 6 & 8.) Plaintiffs testimony would be unaffected by
§ 17 any developments reached during the unrelated 30(b)(6) deposition. Schwab,
18 nonetheless, was willing to compromise with Plaintiffs counsel by agreeing to delay _
19 Plaintiffs deposition while the Court resolved the 30(b)(6) dispute, so long as Plaintiff
20 was willing to extend the case management deadlines. Her counsel agreed to this, but
21 recanted. (Exhibit ll.) Left with the existing case management deadlines, Schwab needs ·
22 to move forward with Plaintiffs deposition. i
23 Plaintiffs refusal to appear is made in bad faith. Schwab therefore also requests the
24 Court to order Plaintiff and her counsel to pay sanctions to Schwab for the cost of
25 -...;.7...
26 lNotably, Plaintiff never objected to the planned deposition when it was
scheduled. Her counsel merely umlaterally cancelled under the representation that they
27 were unavailable for the deposition, but waited to raise this point until just days before
28 the deposition was scheduled to take place.
Case 2:04-cv-00790-EHC Document 80 2 Filed 12/20/2005 Page 2 of4
1 briefing and argument on this issue. See Fed. R. Civ. P. 37(4)(A). Schwab does not _
2 make it a habit of requesting sanctions even when it would be well within Schwab’s right
3 to do so, as reflected in the numerous briefings submitted to the Court in the past two
4 months. Schwab refrained from making such requests even when Plaintiffs counsel
5 made requesting sanctions their routine practice. Schwab, though, has been put to task
6 and expense too many times now in this case because of Plaintiffs strategic
7 gamesmanship. Schwab, thus, should be awarded its fees and costs, in part to bring this
3 gamesmanship to an end.
9 DATED this 20th day of December 2005.
10 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
ll
§ ig 1
gd §E By: s/ Christopher M. Mason, SBN 019891
8 13 Joseph T. Clees
§ § E g 14 Christopher M. Mason
H if g §§ Michelle H. Ganz
g g 15 2415 East Camelback Rasa, suite 800
gg E E 16 . Phoenix, Arizona 85016
° § 17 Attorneys for Charles Schwab & Co., Inc. 5
is
19
21 E
23
26
Case 2:04-cv-00790-EHC Document 80 3 Filed 12/20/2005 Page 3 of 4
1 CERTIFICATE OF SERVICE _
2 I hereby certify that on the 20th day of December 2005, I electronically transmitted A
3 the attached to the Cler1<’s Office using the CM/ECF Systems for filing and transmittal of a
4 Notice of Electronic Filing to the following CM/ECP registrant:
5 Lonnie Williams, Esq.
6 Dawn C. Valdivia, Esq.
Quarles Brady Streich Lang, LLP _
7 One Renaissance Square
Two North Central Avenue
8 Phoenix, AZ 85004
9
10 s/Terri Oliver
ll
_ 12
2015 y
s 6 ’* ~
,1-; a gt 16
18
19
20
23
24
26
28
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